CORAM
PARTIES
THE STATE APPELLANTS
AYIMI SHAIBU ODOMO RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Defendant/Respondent was arraigned on a two-count charge of conspiracy and culpable homicide punishable with death, contrary to Section 97 (1) and 221 (a) of the Penal Code Law of Kogi State. The case of the Appellant was that on the 20th of January, 2009, the Respondent, along with 5 (five) other persons drove in a golf car belonging to the Respondent to Achangana Junction, Adogo in Ajaokuta Local Government Area of Kogi State, and started shooting sporadically in the air. The PW1 and PW2, deceased’s father and uncle respectively, were present at the junction at the relevant time and witnessed the shooting by the Respondent and his group, and in the course of which one Isah Jimoh (aka 2-2) who came along with the Respondent, shot and killed the deceased Jimoh Adabara and immediately ran away. The Respondent on the other hand, claimed that he was the Youth President in Ajaokuta at the relevant time of the incident, that on the said date, he saw a group of people fighting along the road and extorting money from passers-by and went to report the acts to the Chief of the village. On the instruction of the Chief, he reported the matter to the Police who went to disperse the group. In the evening of the same day, he received information that there was another outbreak and he went to the Area Commander to make a report. The Area Commander assigned Mobile Policemen to him and he went with them to the Police Station in Adogo. He was still at the Police Station when information came that somebody had been killed in the fight, thereby raising the defence of Alibi. At the end of trial, the trial court convicted and sentenced the Respondent accordingly. Dissatisfied with the trial court, the Respondent appealed to the Court of Appeal and the lower court upturned the decision of the trial court. Dissatisfied with the lower court’s decision, the Appellant has filed this appeal.
HELD
Appeal Dismissed
ISSUES
Whether it was right for the Lower Court to have set aside the judgment/decision of the trial court having found that there was no reason to upturn the findings while the trial court rejected the defence of Alibi set up.
RATIONES DECIDENDI
STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
“In the light of these two differently contending positions on either side one is reminded of the provisions of section 135 of the Evidence Act, 2011 which is as follows:
135(1) “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
This onus of proof rests on the prosecution, is static and does not shift. See Onafowokan v State (1987) LPELR-2666 (SC). As a follow up is the reiteration that the standard of proof in criminal cases such as the one under discourse is proof beyond reasonable doubt and does not admit of proof beyond shadow of all doubts. See Adebesin v State (2014) LPELR- 22694 (SC) per Ogunbiyi JSC.”
GUILT OF AN ACCUSED PERSON – WHETHER THERE IS A DUTY ON AN ACCUSED PERSON TO PURGE HIMSELF OF GUILT
“To be clear, it needs be said that there is no evidential duty upon an accused to purge himself of guilt in all stages of the criminal trial except in a few limited circumstances which are absent in the case at hand such as the accused raising the defence of insanity. See Osuagwu v State (2016) LPELR – 40836 (SC).”
OFFENCE OF CULPABLE HOMICIDE – INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH THAT A PROSECUTION MUST PROVE
“In addition to what is stated above is to be restated that to secure a conviction in a case of the nature as in this instance of a slightest possibility of a doubt cropping up in the case set up by the prosecution as it is necessary to establish that the accused and no one else committed the crime. The gravity of the situation is well stated by this court in the case of Adava v State (2006) 9 NWLR (Pt.984) 152 at 167 per Kutigi JSC (as he then was), thus:-
It is settled that for a charge of culpable homicide punishable with death to succeed, the prosecution is required to prove the following ingredients of the offence.
That the death of a human being has actually taken place:
That such death has been caused by the accused;
That the act was done with the intention of causing death- or that the accused knew that death would be the probable consequence of his act.
I need not say that the above ingredients of the offence must all be proved together and that failure to prove anyone of them means failure of the charge itself. [Underlining mine).”
DEFENCE OF ALIBI- DUTY ON A DEFENDANT WHO RAISES THE DEFENCE OF ALIBI
“It is trite to say that when a defendant puts across the defence of alibi the duty on him is that it was raised at the earliest opportunity with the necessary particulars that would enable the police investigate it either to debunk or support the said defence.”
WORDS AND PHRASES
“ALIBI”- MEANING OF THE WORD “ALIBI”
“Therefore what really is the meaning of alibi and the simple answer is “else where”, hence the exculpatory nature of the defence. See Balogun v A.G. Ogun State (2002) 6 NWLR (Pt.763) 512; Mohammed v State (2015) LPELR-24397 (SC).”
DEFENCE OF ALIBI – EFFECT OF A PROSECUTION’S FAILURE TO REBUT THE DEFENCE OF ALIBI RAISED BY AN ACCUSED PERSON
“Taking the defence of alibi as raised by the appellant alongside the particulars which in effect was that the other accused were with the DPO Adogo at the time of the incident which the DPO confirmed and nothing was done at the prosecution’s side to rebut that assertion which even the PW4 attested to in evidence. There is therefore no running away from the fact that the prosecution’s failure had left room for a reasonable doubt which cannot he wished away. See Ozaki v State (1990) 1 NWLR (Pt.124)92 at 109.
DEFENCE OF ALIBI – STATUS OF THE DECISION OF A TRIAL COURT UPON ITS FAILURE TO INVESTIGATE AND DEBUNK THE DEFENCE OF ALIBI RAISED BY AN ACCUSED PERSON
“It follows that the trial court going ahead to convict in the light of the circumstances of the failure to investigate and debunk the alibi so properly raised, placed that decision unsustainable at the lower court’s appellate stage. See Almu v The State (2009) 4 SCNJ 159.
MATERIAL CONTRADICTIONS- EFFECT OF MATERIAL CONTRADICTIONS IN A PROSECUTION’S CASE
“In respect to the resolution of the material contradictions in the case of the prosecution in favour of the respondent by the lower court, it has to be reiterated that the law does not insist that there cannot be contradictions in the evidence of witnesses called by the same on any issue in contention but the contradictions should not be material in such a way that they cast serious doubt on the case presented as a whole by that party for if that happens the reliability of such witnesses is in jeopardy and the prosecution cannot claim to have discharged the burden of proof beyond reasonable doubt The doubt is thus resolved in favour of the defendant/respondent. See Nwokoro v Qnuma (1999} LPELR-2126 (SC); Enahoro v The Queen (1965) NMLR 265; State v Azeez (2008) ALL FWLR (Pt424) 1423 at 1463; Edet Asuquo Bassev v The State (2012) LPELR-7813 (SC); Sani v State (2015) LPELR – 248 18 (SC); Chukwu v State (1996) 7 NWLR (Pt.463) 686; Musa Ikaria vThe State (2012) LPELR-15533 (SC).”
DEFENCE OF ALIBI – EFFECT OF PROSECUTION’S FAILURE TO INVESTIGATE THE DEFENCE OF ALIBI PROPERLY RAISED BY AN ACCUSED PERSON
“Where an accused timeously raises the defence of alibi and presents full particulars of his where about, the burden shifts naturally to the prosecution to investigate in order to verify such claim. Where the defence of alibi is properly and correctly raised as required by Law and the prosecution fails to investigate same, the Court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt. Where that happens, the accused is entitled to acquittal. See Azeez v. State (200518 NWLR (Pt.9271312. Aze v. State (200618 NWLR (Pt.982)345, Dageyya v. State (2006)7 NWLR (Pt.980)637, Ndukwe v. The State (2009)7 NWLR (Pt. 1139)43.”
DEFENCE OF ALIBI – NATURE OF THE EVIDENTIAL BURDEN ON AN ACCUSED PERSON WHO RAISES THE DEFENCE OF ALIBI
“Alibi as a defence raises the rebuttable presumption that the accused person, incapable of being omnipresent, could not be at two or several locations simultaneously. The evidential burden is on the accused person, relying on alibi, to establish the defence: Eze v. The State (1976) 1 SC 125. He discharges this burden only on the balance of probabilities: Akile Gachi & Ors. v. The State (1965) NMLR 333; Obidika v. The State (1977) 2 SC 21; Isiekwe v. The State (1999) NWLR (Pt. 617) 43 (CA) at page 65.”
PLEA OF ALIBI – EFFECT OF A PROSECUTION’S FAILURE TO INVESTIGATE A PLEA OF ALIBI
“The law imposes on the prosecution, throughout, the burden of proving or establishing the guilt of the accused person beyond reasonable doubt. Alibi casts reasonable doubt on the case put forward against the accused person by the prosecution. The burdens to prove guilt beyond reasonable doubt and to prove the contrary of anything that casts reasonable doubt on the prosecution’s case are both co-terminus or conjunctive. The prosecution has the burden to disprove the alibi, and it can only be disproved by adducing evidence which establishes beyond reasonable doubt that the accused person was at the material time, present, and not absent, at the locus criminis: Ozaki v. The State (1991) 21 NSCC (Pt. 1) 79 at page 92. This means that the prosecution has the burden to investigate the alibi and present the rebuttal evidence in order to prove the case against the accused beyond reasonable doubt: Adedeji v. The State (1971) 1 ALL NLR 75. Thus, as established in Adio v. The State (1986) 3 NWLR (Pt.31) 74, the prosecution’s failure to investigate a plea of alibi and/or rebut the alibi casts reasonable doubt on the prosecution’s case”.
COURT – WHETHER THE COURT IS AT LIBERTY TO PICK AND CHOOSE WHICH EVIDENCE TO BELIEVE OR DISBELIEVE
“The prosecutor, as the Appellant, has not been able to convince me that, in their verdict allowing the appeal and acquitting the accused person/Respondent, the lower Court had committed any error, either in law or facts, or both. This Court established, in Paul Ameh v. The State (1978) 6 – 7 SC (Reprint) 21, that when the prosecution establishes the defence of the accused, as PW.3 & PW.4 did in the instant case, they would have, or had, failed to prove his guilt beyond reasonable doubt. This statement of law is consistent with the earlier stance of this court in Boy Muka v. The State (1976) 9 -10 SC (reprint) 193 that: the guilt of the accused person is not proved or established beyond reasonable doubt if, on the whole, the court is left in a state of doubt. Such state of doubt is created in a criminal proceeding when prosecution witnesses, as PW.3 and PW.4 did in this case, adduce evidence at variance with pith and marrow of their case. When there are material contradictions in the case of the prosecution the court has no liberty to pick and choose which witness/evidence to believe and which not to believe. The prosecution’s case must succeed on the totality of the evidence they had presented. In such state of affairs, the guilt of the accused person cannot be said to have been established beyond reasonable doubt: Boy Muka v. The State (Supra)”.
APPEALS ON FACTS OR MIXED LAW AND FACT- ATTITUDE OF THE SUPREME COURT TO APPEALS ON FACTS OR MIXED LAW AND FACT WITHOUT THE LEAVE OF COURT FIRST SOUGHT AND OBTAINED
“This Court, by virtue of Section 233 (3) of the 1999 Constitution lacks the competence or jurisdiction to entertain appeals on facts or mixed law and facts without leave first sought and obtained. The apex Court, that this Court is, will decline, except where are special circumstances, and will not permit the re-opening of a question of fact because it will decline to review the evidence the third time: Okai II v. Ayikai II (1950) 12 WACA 37; Serbeh v. Karikari (1939) 5 WACA 34.”
DEFENCE OF ALIBI – INSTANCE WHEN THE DEFENCE OF ALIBI WOULD FAIL
“When the accused person relies on the defence of Alibi he is simply saying that when the offence was committed he was elsewhere, so he could not have committed the offence. The defence of Alibi must be made known to the investigating Police Officer at the earliest opportunity and this would be when the accused person is asked to write his statement. It must be detailed as to where he was on the date in question and, or who was with him. It would then be the duty of the investigating Police Officer to investigate it. Failure to investigate it properly may cast doubt on the probability of the prosecution’s case. The burden of proving an alibi is on the prosecution and not on the accused person. The defence of alibi fails when the prosecution is able to show that the accused person was at the scene of crime when the offence was committed. See Okosi v State (1089) 2SC (Pt.1) p.126 Egwumi v State (2013) 13 NWLR (Pt.1372) p.525 Mohammed v State (2014) 5 SC (Pt.III) p.79, Adebayo v State (2014) 5-6 SC (Pt. II) p.68. Under cross-examination PW4, the investigating Police Officer said:
“…………. the DPO informed the relevant authorities that the appellant was with him reporting about the crisis in Adogo at the time of the incident”.
CASES CITED
STATUTES REFERRED TO
Penal Code of Kogi State